United States v. Rizzo, 15394.

• Decision Date: 16 June 1966
• Docket Number: No. 15394.,15394.
• Citation: United States v. Rizzo, 362 F.2d 97 (7th Cir. 1966)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vincent Michael RIZZO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

362 F.2d 97 (1966)

UNITED STATES of America, Plaintiff-Appellee, v. Vincent Michael RIZZO, Defendant-Appellant.

No. 15394.

United States Court of Appeals Seventh Circuit.

June 16, 1966.

Lee B. McTurnan, Arthur F. Staubitz, Chicago, Ill., for appellant.

Edward V. Hanrahan, U. S. Atty., John Peter Lulinski, Lawrence E. Morrissey, Asst. U. S. Attys., Chicago, Ill., Lawrence Jay Weiner, Asst. U. S. Atty., of counsel, for appellee.

Before HASTINGS, Chief Judge, and SCHNACKENBERG and SWYGERT, Circuit Judges.

HASTINGS, Chief Judge.

This is an appeal, in forma pauperis, from a judgment of the district court adjudging Vincent Michael Rizzo guilty of willfully transporting a stolen motor vehicle in interstate commerce in violation of 18 U.S.C.A. § 2312.¹

Rizzo was charged under a two-count indictment. Count I charged the transportation of the stolen motor vehicle; Count II charged a bank robbery.

At his arraignment, Rizzo waived a formal reading of the indictment and pleaded not guilty. It is not contended that Rizzo was not furnished a copy of the indictment.

At the time Rizzo's case was called for trial, the Government moved to dismiss Count II of the indictment. This motion was granted.

After a brief recess, Rizzo's counsel advised the court that Rizzo wished to withdraw his plea of not guilty to Count I of the indictment and enter a guilty plea. The following colloquy then took place between the court and Rizzo:

"The Court: Well, Mr. Rizzo, are you satisfied with Mr. McDonald\'s defense counsel\'s representation of you?

"The Defendant: Yes, your Honor.

"The Court: And he has consulted you, and you have talked with him regarding your plea in this case?

"The Defendant: Yes, your Honor.

"The Court: Has anybody made any promises to you of any kind as to what disposition will be made of this case upon your plea of guilty?

"The Defendant: No, sir.

"The Court: And you enter this plea of guilty freely and voluntarily?

"The Defendant: I do, Judge.

"The Court: Without any promises of any kind by the District Attorney, your lawyer, or anybody else, including this Court?

"The Defendant: That\'s right, your Honor.

"The Court: All right, it is this Court\'s duty to advise you that under your plea of guilty — and you do desire to enter a plea of guilty?

"The Defendant: I do, your Honor.

"The Court: It is this Court\'s duty to advise you that under your plea of guilty, this Court has the power to impose a sentence of not to exceed five years in the penitentiary, or a fine not to exceed $10,000, or both.

"Knowing that, do you persist in your plea of guilty?

"The Defendant: I do, your Honor.

"The Court: Now, in fairness to you, I want to tell you that Mr. McDonald the defendant\'s counsel did, with Mr. Brown the Assistant U. S. Attorney discuss the disposition of this case in the event a plea were entered, and I told Mr. McDonald and I tell you, that what I will do in this case upon the disposition of the plea will depend upon the presentence investigation.

"No promises were made as to what this Court will do. Do you understand that fully?

"The Defendant: Yes, your Honor.

"The Court: All right, and knowing that, do you persist in your plea of guilty?

"The Defendant: Yes, I do, your Honor.

"The Court: All right, the plea will be accepted. There will be a finding of guilty."

As indicated in the colloquy, sentencing did not take place at the time of trial.

Following the court's acceptance of the guilty plea, Government counsel, upon the request of Rizzo's counsel, recited to the court the facts in the case. It will suffice, without repeating the recital of facts, to say that the recital did not clearly indicate the itinerary and manner of transportation of the stolen motor vehicle, nor who was responsible for the transportation. The recital itself did not make out a complete and thoroughly connected case against Rizzo.

After the recital, Rizzo's attorney put Rizzo on the stand, and after some general questions, the following statements were made:

"Q. You did take this car up to Milwaukee, is that true?

"A. Yes, I did.

"Q. And what he read to the Court, what he recited to the Court, is true and correct?

"A. That\'s right."

On this appeal, Rizzo contends that the trial court violated Rule 11, Federal Rules of Criminal Procedure, 18 U.S. C.A., by accepting his guilty plea without determining his understanding of the guilty plea. This contention does not directly present the question whether Rizzo voluntarily and understandingly pleaded guilty, but rather whether the trial court satisfactorily determined that Rizzo had so pleaded.

Rule 11 reads:

"A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty."

We note at the outset that none of the federal rules are to be applied ritualistically. Rule 2, Federal Rules of Criminal Procedure, 18 U.S.C.A. states:

"These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay."

It is thus not necessary, in order to satisfy Rule 11, supra, that the trial court make a formal determination of the defendant's understanding of the guilty plea. United States v. Davis, 7 Cir., 212 F.2d 264, 267 (1954); Turner v. United States, 8 Cir., 325 F.2d 988, 989-990 (1964); Gundlach v....